State v. Gordon

• Decision Date: 23 March 1976
• Docket Number: No. 36013,36013
• Citation: 536 S.W.2d 811
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Troy Atwater GORDON, a/k/a Troy A. Gordon, a/k/a Donald Lee Spicer, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 811

536 S.W.2d 811

STATE of Missouri, Plaintiff-Respondent, v. Troy Atwater GORDON, a/k/a Troy A. Gordon, a/k/a Donald Lee Spicer, Defendant-Appellant.

No. 36013.

Missouri Court of Appeals, St. Louis District, Division Two.

March 23, 1976 Motion for Transfer to Supreme Court Denied May 17, 1976.

Richard E. Snider, Cape Girardeau, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for plaintiff-respondent.

KELLY, Judge.

Troy Atwater Gordon, the appellant, was convicted after a trial by jury in the Circuit Court of Cape Girardeau County on a three count Second Amended Information wherein, after alleging that appellant had been previously convicted in the State of Arkansas for delivery of phenobarbital, a crime which if committed in the State of Missouri would be a felony, then alleged in Count I that on November 17, 1973, he distributed to Jo Ann Rose, a female under 21 years of age, a Schedule II Controlled Substance named Desoxyn, in Count II, that on the same day appellant distributed to Tammy Pobst a Schedule II Controlled Substance named Desoxyn, and in Count III that on the same day appellant distributed to Tammy Pobst a Schedule III Controlled Substance named Tuinol. The trial court, after an evidentiary hearing found that the appellant was subject to the provisions of the Second Offender Act, § 556.280 RSMo. 1969, V.A.M.S., and after denying appellant's Motion for New Trial, sentenced him to serve a term of ten (10) years in the custody of the Missouri Department of Corrections on each Count, the sentence on each Count to be served concurrently with the sentence imposed on each of the other two counts. After a timely notice of appeal was filed, this appeal followed.

Appellant charges in the Points Relied On section of his brief that the trial court erred (1) in overruling his motion for directed verdict at the close of the State's case because the State failed to prove that the controlled substances were distributed in violation of § 195.020 and/or 195.240 V.A.M.S., ¹ in that the evidence is that the appellant did not intend to surrender ownership or control of State Exhibits 'A,' 'B' and 'C' and thus did not distribute said Exhibits; (2) in overruling his motion for a directed verdict as to two of the three Counts, because even if this court concludes that the evidence proved that the State Exhibits 'A,' 'B' and 'C' were distributed, or that this is a possession case, then there can be only one distribution or possession; and (3) in punishing appellant in accordance with § 195.200.1(5) V.A.M.S. because punishment should have been in accordance with § 195.200.1(2) V.A.M.S. Respondent calls to the attention of this court that the error assigned by the appellant in his first point was not raised in either of his motions for judgment of acquittal nor in his motion for new trial and argues therefore that this first point was not preserved for review. We have examined appellant's motion for judgment of acquittal filed at the close of all of the evidence in the cause as well as his Motion for New Trial and we have thereby discerned that of the three points appellant seeks to present to this court for review in the Points Relied On section of his brief, only paragraph 6 of his Motion for New Trial presents anything faintly resembling the points presented here. Paragraph 6 of appellant's Motion for New Trial is:

'In failing to dismiss Count III at the request of the defendant for the reason that the evidence showed that if the acts complained of in Count III and Count II were in fact true, said acts constituted one offense only, in that all drugs which were distributed to the same person mentioned in Count II and Count III were distributed at the same time and in the same containers and such offenses, as set out in said counts were in fact one offense only, notwithstanding the fact that the drugs were of a different schedule.'

This allegation of trial court error, broadly construed, might be encompassed within the second point relied on as set out in appellant's brief, but then only with reference to Counts II and III, those Counts wherein it is alleged that two separate Controlled Substances, to-wit: Desoxyn, a Schedule II substance, and Tuinol, a Schedule III substance, were distributed to Tammy Pobst on November 17, 1973.

Appellate courts, being courts of review, generally are precluded from affording review to trial court errors which have not in the first instance been presented to the trial court in a Motion for New Trial. In this State, with some few exceptions, points not presented to the trial court in a Motion for New Trial are not preserved for appellate review. Rule 27.20 V.A.M.R., State v. Meiers, 412 S.W.2d 478, 481(6) (Mo.1967). Allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be considered upon an appeal although not raised in the trial court or preserved for review, but the court will consider no allegations of error asserted in the Motion for New Trial which are not briefed in the appellate court and allegations of error not briefed on appeal will be deemed waived or abandoned. Rule 28.02, V.A.M.R. By Rule 27.20(c) V.A.M.R. the trial court on Motion for New Trial, or the appellate court on appeal, may, when it deems that manifest injustice or miscarriage of justice has resulted therefrom, consider plain errors affecting substantial rights though not raised in the trial court or preserved for review, or defectively raised or preserved. This review is, however, purely discretionary.

Appellant's Motion for New Trial is devoid of any reference to the first point presented in his Points Relied On section of the brief filed in this court. It has not, therefore, been preserved for review. However, even if it had been properly preserved for review we would hold that it is without merit, as we shall more fully explain after a statement of the facts viewed most favorably as supportive of the jury verdict.

On the morning of November 19, 1973, David Gaither, a deputy sheriff of Cape Girardeau County and an investigator in the office of the prosecuting attorney of the same county, went to the Sunny Hill Motel and Restaurant within the city of Cape Girardeau, at approximately 9:00 a.m. As he drove into the parking lot of the motel he observed appellant behind a blue Lincoln Continental motor vehicle with Arkansas license plates on it. He drove up to appellant and inquired concerning ownership of the auto and appellant told him that the car belonged to appellant's father. Appellant was then asked who the license plates on the car belonged to and appellant said that he did not know, that they were on the car when his father bought it. When asked who he was, appellant identified himself by means of a driver's license as Donald Lee Spicer. After the conversation between Mr. Gaither and the appellant concluded, the appellant walked due east across the parking lot to where three girls and two boys were standing, a distance of approximately 15 feet. As appellant traversed the parking lot he had his hands in his pockets. Two of the girls toward whom appellant walked were Tammy Pobst and Jo Ann Rose and they were standing two and a half or three feet apart. The other girl and the two men present were about eight feet to the left of Ms. Pobst and Ms. Rose. Appellant walked directly to where Ms. Pobst and Ms. Rose were standing with his back towards Mr. Gaither and some other law enforcement officers who were there with him.

When appellant came up to Ms. Rose, she inquired if he had anything on him. He replied that he did, and she invited him to give whatever he had on him to her. Appellant then removed his right hand from his right coat pocket, removed two bottles therefrom and put them in the right pocket of Ms. Rose's coat. Almost at the same instant appellant pulled his left hand out of his left coat pocket and in it he had a green looking bottle. He stuck this bottle into the right coat pocket of Ms. Pobst. Upon observing this, Mr. Gaither walked up to appellant, Ms. Rose and Ms. Pobst and placed them under arrest for investigation for burglary. He then took the three girls to the back of the car and asked them to dump everything out of their pockets. Another deputy, Earl Cheek, who was also present, searched the appellant. Ms. Rose removed from her coat pocket two bottles identified at trial as Exhibits 'A' and 'B'. After Ms. Rose removed the two bottles from her pocket Mr. Gaither placed her under arrest on suspicion of possession of narcotics and took her to the back of the patrol car, sat her down and called the juvenile authorities. In the meantime, the two other girls were emptying their pockets. After Mr. Gaither put Ms. Rose in the police car he returned to where the others were and observed the green bottle on the back of a green Cadillac parked there. This bottle was marked Exhibit 'C.' All three bottles were conveyed to the L.E.A.C. Crime Laboratory at Southeast Missouri State University in Cap Girardeau where they were examined by a criminalist employed there. Exhibits 'A' and 'B' contained small yellow pills and Exhibit 'C' contained nine different types of pills. After the conclusion of a battery of tests the criminalist concluded that Exhibits 'A' and 'B' contained Desoxyn and that the following pills were in Exhibit 'C': 56 yellow pills containing Desoxyn, 40 orange triangular pills containing Dexedrine, 10 tan and clear capsules containing Eskatrol Spansule, 1 pill--'C--4' containing Dexedrine Spansule, 8 black and white pills containing Strasenbaugh Biphetamine 12 1/2, 'C--6', a black capsule containing Strasenbaugh Biphetamine 20, 'C--8,' a pill containing Tuinal, and 'C--9,' a pill, containing Preludin. According to the criminate the pills found in Exhibits 'A,' 'B' and 'C' contained Schedule II Controlled...